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The Politics of Ethics

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Prosecutors hate being told what to do. As "ministers of justice," they feel imbued with a moral compass that rarely, if ever, needs tweaking by outsiders. Their mission to protect society and the Constitution provides sufficient guidance. Being told how to be "ethical" is downright insulting for attorneys who already perceive themselves as wearing the white hat. Efforts to create ethical standards to guide a prosecutor's work may be perceived as little more than an unnecessary intrusion upon the prosecutor's independence and personal sense of justice. For some prosecutors, it is unwarranted meddling into the prosecution's business. As former Attorney General Richard Thornburgh once famously said, "[T]he defense bar, with A.B.A. sponsorship, is attempting to use rules of professional conduct to stymie criminal investigations and prosecutions." ...

This Article explores how the process of adopting new ethical rules influences prosecutorial behavior. To what extent are new ethical rules a disruptive influence for prosecutors? Why are prosecutors so scared of new ethical standards? How is the governance of the legal profession, especially for those participating in the criminal justice system, affected by reforms in ethical codes?

Part I of this Article chronicles recent efforts in California to adopt an ethical rule requiring prosecutors to disclose all potentially exculpatory information to the defense. California is the last jurisdiction in the United States to adopt such a rule. The effort was spearheaded by Innocence Projects and defense lawyers. The more-than-three-year campaign was only recently resolved after countless hearings on the issue. Throughout the process, many prosecutorial agencies consistently took the position that such a rule was unnecessary because prosecutors already had a constitutional duty under Brady v. Maryland to provide exculpatory evidence that is material to a defendant's guilt or sentencing. The committee redrafting the rules had strong prosecutorial representation, including the former Chief Assistant of the United States Attorney's Office for the Central District of California. The state bar trustees voting on the issue were recently led by a former district attorney; his vice-chair was also a district attorney. Convincing them of the need for the rule, as well as the language that should be used, was a challenging process.

Part II of this Article discusses how politics has played a role in the drafting and enforcement of ethical standards for prosecutors. Fear of adverse rulings by the courts is often insufficient to ensure that prosecutors comply with court and professional conduct rules. Prosecutors know that judges are reluctant to "let the guilty go free" just because the prosecutor has blundered. However, disciplinary hearings are of a different character. A prosecutor's reputation and professional status are on the line, so there can be very real consequences to the prosecutor individually. Accordingly, prosecutors and defense lawyers are keenly aware that the requirements of professional rules of conduct can affect prosecutors.

Finally, Part III offers some proposals addressing the ways defense lawyers can use new ethical rules to combat ongoing problems with prosecutorial misconduct. By focusing on enacting and enforcing ethical rules for prosecutors, defense lawyers can be a positive disruptive force that will lead to more accurate and fairer resolutions of cases.